Chapter 13 - § 13.3 • PER SE VERSUS PER QUOD

• Jurisdiction: Colorado

§ 13.3 • PER SE VERSUS PER QUOD

The law of defamation makes an important distinction between statements that are defamatory per se and per quod. Statements that are defamatory per se are actionable without proof of so-called "special damages." Conversely, statements that are defamatory per quod require proof of special damages. Special damages are defined as "specific monetary losses, if any, which plaintiff had as a result of defendant's statement(s). Special damages do not include injuries to plaintiff's reputation or feelings which do not result in specific monetary loss." CJI-Civ. 22:14 (CLE ed. 2016).

§ 13.3.1—Per Se Versus Per Quod Generally

The Colorado Court of Appeals observed in Hayes v. Smith that "[h]istorically, defamation was actionable per se only if the defamatory remark imputed a criminal offense; a venereal or loathsome and communicable disease; improper conduct of a lawful business; or unchastity by a woman." 832 P.2d 1022, 1024 (Colo. App. 1991). The court noted, however, that the Restatement (Second) of Torts "reflects a trend toward limiting the per se category of slander to those instances in which the defamatory remark is apparent from the publication itself without reference to extrinsic facts." Id. See Restatement (Second) of Torts §§ 571-574; Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (White, J., dissenting).

"Whether a statement is slanderous per se is a question of law for the court." Meehan v. Amax Oil & Gas, Inc., 796 F. Supp. 461, 466 (D. Colo. 1992) (citing Inter-State Detective Bur., 484 P.2d at 133). "For a characterization of a person to warrant a per se classification, it should, without equivocation, expose the plaintiff to public hatred or contempt." Hayes, 832 P.2d at 1025 (citing Lininger v. Knight, 226 P.2d 809 (Colo. 1951)). Thus, in Hayes, the court of appeals concluded accusations that one is homosexual were not defamatory per se because it cannot be said that such an accusation unequivocally holds one up to contempt or hatred.

A statement is defamatory per se if it imputes the commission of a crime; imputes bad business practices in a person's profession, business, or employment; imputes immorality; or is an accusation of untruthfulness or dishonesty. Restatement (Second) of Torts § 569 cmt. d-g. The court determines in the first instance whether the statement complained of is defamatory per se. Inter-State Detective Bur, 484 P.2d at 133. For example, in Inter-State Detective Bureau, the court discussed...